TNAG-0678-FCO40-827-Allegations-of-corruption-and-bribery-in-Hong-Kong-1977 — Page 64

(商廠

C. M. A.

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2.

Hence, if the giver (the "third party") is pro- secuted for giving commissions, he is in fact being victimised.

This part of the Ordinance is not only unreal- istic in the business sense, but is also unrea – sonable and inequitable to the giver.

Section 9(2) of the Ordinance requires the giver to ascertain whether an employee has received his employer's permission to accept commissions, but the Ordinance does not define "employer" clearly, and, as a matter of fact, it is diffi- cult to define in real life. For example, one who appears to be an employer, might himself be but an agent of another employer. Hence, to comply with this sub-section is impracticable and virtually impossible. Moreover, during business negotiations, a decision has to be made promptly which may mean corporate success or failure; no party can take time to interrogate the agent or his employer or to seek the latter's permission and thus allow a needed business opportunity to slip away. Transactions number tens of thousand a day, and it is impossible to seek the employer's consent every time.

Finally, since an employee is authorised to enter into business negotiations with another party, there is no reason why this employee should not be trusted and recognised as that company's fully authorised official. Why should the Hong Kong exporter presume the worst and not the best? Where business has continued for a long time, it is even more unrealistic for a businessman now to raise the question of authority; it would only create misunderstanding and bad- will, and would certainly damage established business relationships and the end result would adversely affect Hong Kong's trade and parti- cularly its exports.